No Compromise

01.15.13

Aaron Swartz’s Unbending Prosecutors Insisted on Prison Time

Swartz faced tough U.S. Attorney Carmen Ortiz and her assistant Stephen Heymann, who rejected any deal that did not involve a prison sentence—which may have helped drive the cyber programmer to despair.

Until she was accused of driving the 26-year-old cyber wunderkind and public-access activist Aaron Swartz to suicide, the top federal prosecutor in Massachusetts was a liberal’s dream.

Not for nothing was United States Attorney Carmen Ortiz championed by the late Sen. Edward Kennedy and appointed by President Obama nearly four years ago.

She is Hispanic and was raised in a New York housing project, and after her husband died of cancer she raised two daughters on her own. She has taken on political corruption, and she has been so aggressive against white-collar crime that her office collected more in forfeitures and fines than any other jurisdiction in the country.

Her avowed motive in becoming a prosecutor was because “there’s a greater chance for justice.” She even has sought to extend that beyond our shores, working in earlier years with Harvard professor, former Watergate prosecutor, and former deputy attorney general Phillip Heymann to restructure the judicial system in Guatemala.

Oddly, it was Heymann’s son, Assistant U.S. Attorney Stephen Heymann, who is said to have been the uncompromising voice of Ortiz’s office in discussions with Swartz’s attorney, Elliot Peters.

Swartz was charged with illegally tapping into a computer system at MIT to download millions of scholarly papers from a fee-charging database. Peters was sure he could win the case, but he was seeking a deal rather than put his client through the expense and stress of a trial and risk serious prison time in the event of a loss. Peters proposed that Swartz plead guilty to a misdemeanor and receive either probation or a deferred prosecution agreement, whereby the matter would be dropped if he behaved himself.

The prosecution is said to have insisted on prison time, keeping the tone Ortiz personally set when Swartz was indicted last year. Her guiding sense in these matters seems to be the right and wrong of her parents, monumentally honest souls who came to New York from Puerto Rico with little English or education, but who were able to send her on to a better life made with hard work and loving attention, the father laboring in the garment district and driving a cab and selling trinkets on the street, sometimes with Ortiz at his side, finally saving enough to open a variety store, every dollar hard-earned.

His 57-year-old daughter now spoke as one of the truly tough kids out of the Frederick Douglass housing project in an era of murder and mayhem and drugs, a kid who did her homework and kept an unwavering eye on her goals right through Saint Agnes Cathedral High School and Adelphi University and George Washington University Law School to the Middlesex County Prosecutor’s office and then the U.S. Attorney’s office, who kept going as a widowed mom, raising a younger sister along with her daughters and still managing to become the first woman and first Hispanic U.S. attorney in Massachusetts history.

“Stealing is stealing, whether you use a computer command or a crowbar, whether you take documents, data, or dollars,” Ortiz said after Swartz’s arrest. “It is equally harmful to the victim whether you sell what you have stolen or give it away.”

That moral sense was joined by the righteousness of a legal eminence’s son. The younger Heymann had in recent years been taking half a step away from his father’s shadow, and making a bit of a name for himself as a prosecutor of cybercrimes.

“They’re very serious and their job is very serious and they’re very serious about it and this is a very serious matter and this is how it is going to be,” Peters says of the prosecution in the Swartz case. “They made their position very clear. They believed they had to seek prison time and multiple felony convictions in this case.”

The best deal the prosecutors would offer was four months in prison with Swartz pleading guilty to 13 felonies. And they warned Peters that his client had better take it while he still could.

“They told me over and over again that the offer had been on the table,” Peters says. “And any future offer would be less attractive.”

“They made their position very clear. They believed they had to seek prison time and multiple felony convictions in this case.”

Peters says the prosecution tried to further pressure him by saying the judge was pro-government and a tough sentencer. It was suggested that Swartz stood to get seven years if he lost at trial. Peters felt that any prison time at all would be excessive.

“Aaron was a small man,” Peters says. “He was sensitive. He was shy. He was intellectual. He didn’t seem to be like a very strong candidate for federal prison.”

Peters felt there was an ever bigger reason that prison was not appropriate.

“Aaron’s not a criminal,” Peters says. “You just shouldn’t use this case to destroy Aaron Swartz.”

After hearing more of the same from Heymann on Wednesday, Peters was coming to the conclusion that Swartz likely would have no real choice but to go to trial.

“We weren’t talking the same language at all,” Peters says. “They certainly weren’t going to offer us anything we were interested in taking. I said, ‘I think I could lose this case and do better than you’re offering me.’”

Peters felt he would have a good chance at prevailing in an evidence-suppression hearing on Jan. 25, and that he would be more than ready to win when the case went to trial on February 1st. He was confident that he could demonstrate that what Swartz did with the JSTOR’s database of academic publications was ultimately no more illegal than when he downloaded millions of documents during a free trial of the Public Access to Court Electric Records, or PACER, system, the pay-per-page government database of court documents. The FBI had investigated the PACER download and concluded there was no prosecutable criminality.

In both cases, Peters says, Swartz had simply been seeking to dramatize his view regarding public access to data. Swartz had even engaged in a little prankster whimsy in his downloading, employing the fake name George Host, so his email username was Ghost. And Peters also notes that MIT is so famous for its pranks it even has a section of its museum known as the Hall for Hacks dedicated to them. These had included placing such things as a police car atop the Great Dome, no doubt technically a felony.

“I’ll probably be here for a while; I understand a bunch of engineering students put my motorcade on top of Building 10,” President Obama joked while giving a speech at MIT in 2009, the year he appointed Ortiz.

Peters harbored one last hope of getting the prosecution to soften on his client by asking 10 prominent personages to write letters attesting to Swartz’s value as a visionary and worth as person.

“Capable of making extraordinary contributions to society,” Peters says.

Peters, meanwhile, was getting ready to let a jury decide what constituted justice in this case.

“I was expecting to walk out of the courthouse with Aaron at the end of the trial,” Peters says.

Peters had not yet been able to brief Swartz on the latest developments when he got a stark and shocking message on his smartphone on Friday. It was from his client’s father, Robert Swartz.

“Aaron committed suicide.”

Peters called the father.

“He told me it was true and he and his wife were trying to get a flight from Chicago to New York,” Peters recalls.

New York was where Aaron Swartz had hanged himself. Suburban Chicago is his childhood home. The funeral was scheduled for Tuesday at a Highland Park synagogue, and Peters was among those expected to speak.

In the meantime, the family had released a statement saying Swartz’s suicide had been “the product of a criminal justice system rife with intimidation and prosecutorial overreach.”

In a blog Swartz had written in 2007 of struggling with depression and suicidal thoughts, one entry speaking of “the day Aaron killed himself.” But friends say he had seemed to be outpacing the gloom until the criminal case turned into a nightmare from which he apparently saw but one escape.

In its statements, Swartz’s family blamed MIT as well as prosecutors for decisions that “contributed to his death.” Swartz is said to have indeed been distressed that the school that has a Hall of Hacks and a tradition of laughing along with brilliant rascals was not willing to allow a little good-natured hacking to slide and join the JSTOR folks in declining to press charges.

But what seemed to totally unnerve him was the sternness in the face of justice as presented by the truly tough kid out of the Fredrick Douglass houses and the big shot’s son. The righteousness in a successful striver who has always seemed only admirable had been alloyed with what seems too much like self-righteousness in an assistant who seems to be trying too hard.

The result appears to be such rigidity that not enough distinction was made between actual cybercriminals who loot bank accounts and swindle companies and endanger national security and just a wunderkind trying to make a point.

The U.S. Attorney’s office is declining to discuss the case, with a spokeswoman actually saying “we want to respect the privacy of the family and do not feel it is appropriate to comment on the case at this time.”

Expressions of grief and condolences for Swartz’s loved one came from all over cyberspace. Tim Berners-Lee, who invented the World Wide Web with no thought of financial gain, tweeted a tribute to a comrade who shared his passionate belief in free access in a new frontier.

“World wanderers, we have lost a wise elder. Hackers for right, we are one down. Parents all, we have lost a child. Let us weep.”

On Monday, the prosecution filed a final document in criminal case No. 11-er-10260.

“The United States Attorney for the District of Massachusetts, Carmen M. Ortiz, hereby dismisses the case presently pending against Defendant Aaron Swartz. In support of this dismissal, the government states that Mr. Swartz died on January 11, 2013.”

The paper was signed by Ortiz and Heymann. It was then duly filed in PACER, where it is available to anybody for 10 cents, or 10 cents more than Swartz thought people should have to pay for a public document.